Harbala Manmohanrai Rawal and Others vs Narotamdas P. Nandani and Another

Chhatpar, J.—The question involved in the present revision application is one of Court-fees only. The first six applicants are the sons and daughters of the opponent No. 2, the 7th applicant his wife and the 8th applicant his mother. They form members of a joint Hindu family. A mortgage deed seems to have been executed by the 2nd opponent in favour of the first opponent to secure a debt of Rs. 29000/- and odd, mortgaging a property, which is said to be an ancestral joint family property in which the family is residing. The mortgagee - the first opponent, obtained a mortgage decree and sought to execute it by sale of the mortgaged property, when the present suit was filed. Two prayers were made in the suit, first for a declaration that the execution sale would not affect the rights of the Plaintiffs on various grounds one of which was that the mortgage was without necessity and for speculative business and not binding upon the Plaintiffs'' interest in the property; the second prayer was for injunction restraining the decree-holder from executing the decree against the interest of the Plaintiffs. The Plaintiffs valued the suit for both the prayers at Rs. 240/- and paid Court-fee of Rs. 15/-. In the plaint there were averments to the effect that the sons of the second opponent were entitled to share as also his wife and mother, the latter two by way of maintenance and that the daughters were entitled to maintenance and provision being made for their marriage expenses, and therefore they were thus interested in the joint family property. But the relief was confined to the two prayers mentioned above, there being no prayer for partition or fixation of maintenance and marriage expenses being decreed in this very same suit. The learned Civil Judge in an exhaustive judgment held as under:

I therefore hold that the Plaintiffs are liable to pay ''ad valorem'' Court-fees. The three sons should pay it on the value of their shares in the property or the corresponding proportion of the decretal amount as they may choose to value the plaint. The other Plaintiffs have to value their claims for maintenance and residence and the daughters should do so additionally in respect of their claim for marriage expenses. I do not however agree with Shri Mankad that they need pay additional Court-fees on the whole of their total valuation. It will be seen that out of their total claim, 3/4th representing the shares of the three sons will be covered by the payment of ''ad valorem'' Court-fees in their respect as directed above. If the mother, the wife and the daughters claim any charge or burden on the share of the Defendant No. 2, i.e. on the, remaining l/4th which it does seem they do, they should pay ''ad valorem'' Court-fee on the value of their alleged charge or burden in respect of the l/4th of the father''s share.

The Plaintiffs were given one month''s time to indicate their valuation and pay deficient Court-fees. Against this order the present revision application has been filed.

A notice was issued to the Advocate General and he has also argued on the question of the adequacy of the Court-fees paid.

Now there seems little doubt that the order so far as the payment of Court-fees on the alleged claim for maintenance and residence and the marriage expenses is concerned, is clearly .wrong. Neither the right of maintenance nor marriage expenses are claimed in the present suit. The plaint does contain recital of the interest of the daughters, the wife and the mother of the opponent No. 2, but these recitals are made to justify their being made parties to the suit. They do not claim that these reliefs should be granted in the present suit, which is confined to the two prayers stated above. So there is no question at all of any separate Court-fee being paid for maintenance, residence or marriage expenses. The learned Advocate General admits that the order of the learned Civil Judge in this respect is clearly wrong. As regards the rest of the order directing the Plaintiffs to state the valuation of their claim and pay deficit Court-fees, the learned Civil Judge seems to be of the opinion that this is not a suit for mere declaration but that a consequential relief is also prayed and as the reliefs claimed impliedly seek to set aside or cancel the decree passed in favour of the first opponent, they should pay ad valorem'' Court-fees as ordered by the learned Civil Judge.

Now the learned Civil Judge seems to have entirely overlooked a Bombay amendment by the Finance Act of 1932, introducing for Clause (5) of Article 17, Schedule II the words "to set aside a decree or an award" and making a plaint or memorandum of appeal chargeable with a fixed fee of Rs. 10/- or Rs. 15/-, thus not providing payment of ''ad valorem'' Court-fees in a suit to set aside a decree. The original Clause (5) was worded "to set aside an award". The word "decree" was added by the Bombay amendment. So that a suit to set aside a decree is now chargeable with a fixed fee of Rs. 10/- or Rs. 15/-. The: Saurashtra Court-fees Act is the same as that in force in the State of Bombay in this respect. Consequently a suit to set aside a decree would be chargeable with a fixed fee of Rs. 10/- or Rs. 15/- only. If in addition to set aside a decree a prayer is made for injunction restraining the decree-holder from executing the decree, the prayer for injunction has to be separately valued by the Plaintiff and additional Court-fee is to be paid as laid down in the case of - Bai Lilavanti Vs. Vadilal Purshottamdas, . In that case it was observed:

The appropriate provision in the Court-fees Act for such a suit is Article 17(v) of Schedule 2 as amended by the Bombay Finance Act (2 of 1932). The Plaintiff must therefore state whether the value of the subject-matter is Rs. 500/- or more in order to see whether the fixed fees payable under that Article are Rs. 10/- or Rs. 15/-. The subject-matter is-'' obviously the amounts due under the two decrees, namely, Rs. 5366-4-6. As the Plaintiff wants to have himself relieved of the liability to pay those amounts under the decrees, he must value the plaint accordingly and pay Court-fee of Rs. 15/- for the relief of having the decrees set aside and a separate Court-fee of Rs. 5/- at which he has valued his claim for the injunction.

This ruling dissents from an earlier ruling of the same High Court in the case of - Kisandas Bankatlal Vs. Ragho Ram Krishna, , which held that the fee prescribed under Article 17, Clause (v) of Schedule 2, Court-fees Act (as amended in Bombay) must be held to be an ''ad valorem'' fee depending on the amount or value of the property involved. This ruling was of a Single Judge and it should be deemed to be no longer good law in view of the Bench decision in Bai Lilavanti Vs. Vadilal Purshottamdas, . If this Article 17(v) of Schedule II were applicable to the facts of the present case, the Plaintiffs would at the most be required to pay a fixed fee of Rs. 15/- in respect of their prayer for declaration, which according to the learned Judge included the prayer of setting aside the decree and an additional amount would be payable on the prayer for injunction to be valued by the Plaintiffs.

Mr. Joshi the learned advocate for the applicants has however argued that the present suit is not for setting aside the decree but for a declaration that the execution sale would not affect the interests of the Plaintiffs and that only the interest of the second opponent would be liable to be sold in the execution of the decree. This is a prayer for declaration and there is a further prayer for injunction. It appears to me that the latter relief is consequential to the declaration that the execution sale should not affect the rights of the Plaintiffs in the joint family property as the injunction is to restrain the decree-holder from executing the decree against such interest of the Plaintiffs. The case would therefore fall u/s 7(4)(c) and it is up to the Plaintiff to put whatever valuation he may do on the reliefs. The Plaintiffs had already done that and had valued the relief at Rs. 240/- and paid Court-fee of Rs. 15/- thereon. I am therefore of the opinion that the learned Judge was wrong in ordering the Plaintiffs to pay ''ad valorem'' Court-fee in the manner he has done on the basis that the Plaintiffs wanted to set aside the decree passed in favour of the first Respondent against the second Respondent. Even if the prayer for declaration included the prayer for setting aside the decree, the amount of Court-fee would not be payable on the ''ad valorem'' basis but a fixed Court-fee of Rs. 15/- would be payable under Article 17(v), Schedule 2. But in my opinion the Plaintiffs did not pray for setting aside the decree, which according to the Bombay School of Hindu Law would at least bind the second opponent''s interest. They were not parties to the mortgage suit, although it might be contended that the second Respondent represented their interest, being the manager and the father of the joint family. It is one thing to say that a person is a party to the suit and Anr. to say that his interest in the family property is liable to be sold in execution of the decree passed in the suit. A decree passed against the manager of the joint family for payment of a debt binding upon the family cam be executed against the whole joint property including the interests of other coparceners therein, who might not be the parties to the proceedings. But it is equally certain that the other coparceners can challenge such a decree by a separate suit and show that their interest in the joint family is not liable for payment of the decretal debt on the ground that the debts were not binding on the family. It will not be a suit by a party to a decree for setting it aside but a suit for declaration that the decree cannot be executed against the interest of the other coparceners. I am therefore of the opinion that the Court-fee paid by the Plaintiffs in the lower Court was proper.

There yet remains a question whether it is open to the Court to revise the valuation given by the Plaintiffs on a prayer for injunction falling within Section 7. A Full Bench of the Sind Court in the case of - ''Lakhomal Deepchand v. Deepchand Tolaram AIR 1937 Sind 241 (FB) (C) lays down that Clauses (c) and (d) of Sub-section (iv) of Section 7, Court-fees Act, must be read with Order 7, Rule 11, Code of Civil Procedure, and these provisions of the CPC control the provisions of the Court-fees Act. The absence of rules u/s 9, Suits Valuation Act, is no bar to the exercise of the powers conferred by Order 7, Rule 11, Code of Civil Procedure, and the question as to what is a proper valuation depends upon the circumstances of each suit and the judicial discretion of the Court. Therefore in a suit to set aside a decree or an award where consequential relief is sought by way of an injunction restraining the decree-holder from enforcing his decree, the fixed fee prescribed by C1ause (5) of Article 17 of Schedule 2, Bombay Court-fees Amending Act, is not the only fee payable and it is not open to the Plaintiff to value the injunction arbitrarily and pay Court-fees thereon; such value can be revised by the Court. This contentious question however is not before me at present. So, I need not give my decision thereon. It may be noted that the Sind case referred to was to set aside a decree or any award while the present suit is for a declaration and injunction. With these observations, I allow the revision application and set aside the order of the lower Court. In view of the peculiar circumstances of the case, I direct each party to bear its own costs.